Opinion
No. 78-1049.
March 20, 1979.
Appeal from the Circuit Court, Monroe County, Helio Gomez, J.
J. Edward Worton, Key West, for appellant.
Jim Smith, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, J., and CHARLES CARROLL (Ret.) and EZELL, BOYCE F., Jr., (Ret.), Associate Judges.
On the authority of Wilson v. State, 359 So.2d 901 (Fla. 3d DCA 1978), we reject the defendant-appellant's contention that he was privileged to trespass into the trailer where his wife was staying with a male friend.
Because he made no objections below either to the court's instructions or to the pertinent verdict form, we do not consider his alternative claim, raised for the first time on appeal, that the elements of the lesser included crime of which he was convicted were not alleged in the information. Under the circumstances of this case, which are very similar to those involved in Andrews v. State, 309 So.2d 576, 577 (Fla. 1st DCA 1975) (specially concurring opinion), the alleged error was not a fundamental one which may be reviewed notwithstanding the defendant's failure to preserve the point below. Andrews v. State, supra; see also Smith v. State, 344 So.2d 905 (Fla. 3d DCA 1977), cert. denied, 353 So.2d 678 (Fla. 1977); McPhee v. State, 254 So.2d 406 (Fla. 1st DCA 1971); compare Minor v. State, 329 So.2d 30, 31 (Fla. 2d DCA 1976), and cases cited.
Affirmed.